Justification Of Human Rights Research Articles

Human Rights: From the Origins of Philosophical and Legal Thought to Modern Geopolitical Reality

The paper presents the author’s understanding of the unity of the logical and historical connection between the processes of formation of the institution of human rights and the formation of the idea of human rights in philosophical and legal concepts. The idea of human rights has historically been formed and put into practice as a result of several mutually dependent processes: firstly, the confrontation of social actors, the human struggle for the normative establishment of acceptable, decent standards and quality of life; secondly, the formation of the concept of «social justice» in the public consciousness on ethical and moral grounds that have developed in society; thirdly, the conceptualization of the worldview, philosophical, theoretical, ideological justification of human rights based on their understanding as natural, inalienable; fourthly, the international institutionalization of human rights; fifthly, the recognition of the institution of human rights in national legal systems. The significance of the social conflict that existed throughout the history of mankind as a source and driving force for the emergence of the idea of human rights is shown. The genesis of philosophical and legal ideas, starting from the period of Ancient Greece, expressing various aspects of the concepts of «justice», «freedom», «equality», «law», is investigated. The impossibility of formation is shown the formalized concepts of human rights before the formation of the theory of natural law. It is noted that the decisive factor in the beginning of the formation of the institution of human rights was the formation of natural law, the assertion of its influence on public consciousness. The importance of the bourgeois revolutions in Europe, which led to the formation of the Declaration of the Rights of Man and of the Citizen in 1789, is emphasized. The paper shows the fundamental difference between the socialist understanding of rights and freedoms from their understanding, which developed in the depths of bourgeois societies; the historical conditionality of the adoption of the Universal Declaration of Human Rights in 1948 after the Second World War is shown. The importance of the ideological foundations of human rights, the philosophical and legal explanation of the need for this institution is emphasized. A clash of worldviews in the understanding of human rights in the context of modern geopolitical reality is stated and an assumption is made about the possibility of forming a new concept (model of human rights).

Human Rights and Views of the Catholic Church under Habermas Discourse Theory


 
 
 This article aims to explain the views of the Catholic Church on human rights and put them into dialogue with the concept of human rights based on discourse theory as put forward by Jürgen Habermas. In the view of the Catholic Church, the ethical basis for the concept of human rights is the biblical view of human beings as being made in the image of God, which later became the forerunner to the birth of the concept of human dignity and the ethical basis for human rights. This article shows that the discourse theory rejects this theological model of justification for human rights. The criticism of the discourse theory as it relates to an absolute paradigm is that the absolute paradigm requires metaphysical premises. However, in a modern society characterized by a pluralism of worldviews and philosophical and religious beliefs, such metaphysical claims are no longer acceptable. Through the lens of discourse theory, the foundation of the notion of human rights cannot be based on the pre-political basis of religious values. This discourse theory grounding model is based on the conditions of contemporary post-metaphysical society, characterized by a plurality of comprehensive doctrines. However, Habermas emphasizes the role of religion in the public sphere in promoting human rights. He advocates for the reinvention of public reason by encouraging religious people to translate sacred terms into secular language when entering formal political spaces. According to Habermas’ theories, democratic decision-making must allow citizens the right to use religious terms in public debate. Furthermore, this article shows that discourse theory creates a roadmap for human rights by allowing religion, law, and politics to coexist. Only if we adhere to the principles of discourse theory can we guarantee the fair and just participation of both secular and religious members in a democratic constitutional state.
 Keywords: Human Rights, Catholic Church, Religion, Habermas’s Discourse Theory
 
 

Constructivist and well-being based justifications of human rights. Rivals or allies?

ABSTRACT Scholars disagree about the proper justification of human rights and which rights qualify as human rights. While some argue for a very limited set of human rights, others defend more comprehensive accounts. In this paper I suggest that a defence of a comprehensive set of human rights can be strengthened by combining constructivist deontological and well-being based teleological justifications. To this end, I discuss two prominent proponents of constructivism and the well-being approach: Rainer Forst and Simon Caney. Forst criticises teleological justifications for grounding human rights in non-universalizable conceptions of the good, such as autonomy, that can reasonably be rejected by others. Constructivism, in contrast, does not rest on any particular idea of the good life and thus allows for greater ethical plurality. I reject this specific criticism, arguing that Caney’s approach ultimately allows for the same plurality. I also highlight that constructivism on its own cannot justify rights of people who are not (yet) able to reason. The well-being approach provides substantive arguments for the rights of these individuals. However, these arguments are made with the framework provided by constructivism. I hold, contra Caney, that Forst’s right to justification is primary in that it is the unavoidable basis from which justice issues can be dealt with in a reasonable way and that the main function of human rights is to protect the equal moral status of persons. I conclude that Forst’s constructivist and Caney’s well-being approach are complementary rather than rivalrous: when combined they provide a more robust justification for a comprehensive set of human rights than considered separately.

Philosophical Foundations of Human Rights According to Soren Kierkegaard

Philosophical foundations of human rights as envisioned by the Danish philosopher Soren Kierkegaard. Kierkegaard, a pivotal figure in existentialist philosophy, presents a unique perspective on human rights that investigates into the individual’s subjective experience and moral responsibility. His ideas emphasize the significance of human agency, freedom, and the ethical imperative of choosing one’s values and actions authentically. This article provides an overview of Kierkegaard’s key concepts, such as the individual’s relation to God, the concept of authenticity, and the ethical life, and their implications for the understanding of human rights. It delves into Kierkegaard’s existentialist perspective and its implications for our understanding of human rights, highlighting the importance of individuality, freedom, and moral responsibility in his philosophical framework. It also highlights the potential contributions of Kierkegaard’s philosophy to contemporary discussions surrounding the nature and justification of human rights.

Theoretically Justification of Human Rights: A Case of Natural Rights Theory

The theoretical justification of natural rights examines the philosophical foundations and ethical principles that support the existence and applicability of these rights. People have some rights simply by being human, and neither groups nor governments may bestow them upon them, according to the idea of natural rights. It also provides a concise overview of the theories that support natural rights, including those that rely on moral intuition, human nature, and the Social Contract. The moral intuition approach maintains that natural rights are self-evident and universally accepted since they are based on our innate sense of right and wrong. It claims that certain inherent human rights are required for human flourishing and well-being. Based on the intrinsic qualities and needs of people, the human nature perspective defends natural rights. It argues that some rights, such as the right to life, liberty, and property, are derived from basic human attributes and abilities. According to the Social Contract theory, a hypothetical agreement among members of a community serves as the foundation for natural rights. It proposes that people voluntarily create a Social Contract to set up a governing body that upholds and defends their fundamental rights. These theoretical defenses offer frameworks for comprehending the nature, significance, and defense of natural rights. They emphasize on these rights’ intrinsic and universal nature, the value of human dignity, and the idea of inalienability. Individuals can live dignified lives by recognizing and upholding their natural rights.

Navigating Human Rights in Indonesia and Beyond

In Indonesia, promoting human rights is a long battle run. Human rights were just formally recognised when Suharto's authoritarian regime ended in 1998, but these rights have experienced a rise and fall throughout the Reformasi. Indonesia successfully amended the 1945 Constitution with more human rights provisions and enacted Human Rights Law 39/1999. However, this country still faces the challenges of ensuring that human rights are promoted with the state’s obligation to respect, protect and fulfil amidst the debates on institutional reforms, universalism and relativism, as well as the limited powers of the national human rights institutions. Along with efforts to ensure that democracy and human rights can coexist, democratisation in Indonesia is also inextricably linked to advancing human rights. After two decades of Indonesia's reform, human rights and democracy have become vital cornerstones, but they have experienced serious challenges in their promotion. From the Indonesian context, these discourses can relate to those discourses in other Global South countries, like India, that this edition will elaborate on due to their relatively similar and unique pathways with arduous tasks in managing domestic affairs. Indonesia can represent critical, which is more likely underrepresented discourses with robust arguments on various social, economic, political and cultural situations in the Southern Hemisphere, from which these debates endure and are usually more centred on the West and, to some extent, the Global North. These discourses from the Global South countries can provide a frequently unheard perspective to current discussions on human rights. By navigating human rights in Indonesia and beyond, these discourses highlight how the new justification of human rights can contribute to emancipatory initiatives.

Do Animals Have Rights?

Do animals have moral rights? An affirmative answer follows from the best justification for human rights that we can give. The moral status not only of humans but also of animals consists in an egalitarian right to have rights. From this equal status, however, substantially equal rights follow only if the morally relevant interests are equal. A reasonably broad and differentiated understanding of our own, human animal nature reveals which interests we share with many other animals. Thus, sentient animals have basic rights to life and well-being, including volitional activities and access to beneficial social relationships. Further rights arise from special human-animal relationships that are also politically relevant. By subjecting animals and, thus, making them existentially dependent on us, we owe them more than mere protection and help in easily remediable emergencies. We thereby also assume associative duties, as they exist among fellow citizens. Therefore, we should open our understanding of the common good to the reality of species-mixed communities and represent animals politically.

Keadilan Dan Hak Asasi Dalam Terang Fajar Filsafat Islam

In order to seek the nature of human rights in Islamic philosophy, it will not be able to understood until clarify the overall Islamic concept of nature, humans and life. As it is also known that the essence of justice cannot be separated from the relationship that occurs between the Creator and creatures. Justice also becomes very important in law, because it is subjective and individual. Justice as a value to create an ideal relationship between humans, as a manifestation of their rights. In this case, justice is the basis that is committed to delivering humans to a just, prosperous and happy life. As it is known that the practice of law in the western sense is really in accordance with the special attention of some experts in Islamic law. The meaning of Islamic philosophy itself cannot be separated from the Greek teachings which are collaborated with the contents of the explanations/teachings in Islam. So the discussion on human rights will not be separated from the discussion of Epistemology, Ontology and Axiology. It is well known that philosophy itself will not be separated from logic, because the context of the discussion of philosophy will continue to change as a civilization develops. If we mention about Islamic philosophy, we will know how the nature of justice is seen from the perspective of logic that is shaded by the Islamic side. How that sense works well in determining an acceptable justice for the welfare of human rights. It has also been stated that humans are intelligent animals, so humans are different from other animals in general. Intellect is a benchmark for the perfection of a human action in deciding something. Justice for human rights in the view of Islamic philosophy is justice for human rights which is applied in accordance with mature thinking and cannot be separated from the teachings of the Qur'an and Sunnah.

ПОТРЕБОВИЙ ПІДХІД У ДОСЛІДЖЕННІ ПРАВОВИХ ЯВИЩ: ВІТЧИЗНЯНИЙ ТА ІНОЗЕМНИЙ ДОСВІДИ

The article is devoted to the comparative legal analysis of domestic and foreign experience of the needs approach. It is established that Professor P. Rabinovych made a significant contribution to the development of the issue on the importance of legal regulation to meet the needs of the domestic general theory of law. He was the first to introduce into scientific circulation the term «needs approach» as the idea that the essence of social phenomena are those useful characteristics that can be used by man and society to meet their needs and interests. Associate professors V. Bigun, R. Gavrilyuk, D. Hudyma, Y. Loboda, O. Pankevych, A. Rabinovych, as well as Professor S. Rabinovych and others developed his ideas on the application of the needs approach in their scientific works. Consequently, R. Gavrilyuk defined that law is a way of normative existence of an individual in the society based on the freedom of expression to satisfy his/her personal (private) and general (public) needs on the basis of freedom, equality and justice. O. Pankevych applied the needs approach to establish the essence of the social state, as well as to define the concept of social law, its subject, method and status in the system of positive law. D. Hudyma used the term «need» to reveal the meaning of «the essence of law», to define the need-researching approach as a kind of anthropological approach and argues that «law is objectively designed to help meet human needs.» A. Rabinovych noted that at least two preconditions must be provided for the use of the needs approach: 1) it is necessary to comprehend the general understanding of the needs of subjects, as well as to identify the main types of these needs through their classification; 2) it is necessary to acquire a meaningful knowledge of general social, group and individual needs in the society in which the studied phenomenon was formed and exists. It is found that in the modern European and Australian scientific literature, the theory of the needs approach as a justification of human rights has become somewhat widespread. Fundamental representatives of these theories are Czech jurist Martin Gapla, British political scholar David Miller, professor at the Royal College of Great Britain Massimo Renzo, professor of medical ethics at the University of London Len Doyal, professor at the British Research Center for Social Exclusion Ian Gaff, as well as the Australian scholar James Griffin. The essence of the above approach, in their opinion, is the following: – human needs, namely universal, are the basis for human rights. Such human rights are considered «real» and are able to create and ensure a dignified human life; – people with full capacity are «regulatory agents», that is their needs, the number of which grows over time and are constantly improving, serve as a basis for the creation of regulations, making them, thus, both a guarantor and a tool to meet them; – the effective functioning of legislation depends on the successful functioning of means and mechanisms to meet human needs, which legitimize certain rules of law.

THE RIGHT OF SELF-DEFENSE AND THE ORGANIC UNITY OF HUMAN RIGHTS

AbstractThe article challenges the fashionable but finally unsupportable opinion in political and academic circles that there exists no compelling, unitary, universally resonant moral and legal justification of human rights. The argument is intimated by two overlooked passages in the preamble to the Universal Declaration of Human Rights that presuppose the right of self-defense against arbitrary force, understood as both a moral and legal concept, and as relevant both to personal and collective life. It shows how the logic of defensive force underlies the three formative human rights instruments: the UDHR, and the two covenants on political, legal, economic, social, and cultural rights. The underlying claim is that good reasons of a particular kind are required to justify any use of force, a claim that makes perfect sense against the backdrop of the atrocities committed by the German fascists and their allies in the mid-twentieth century. The article also refers to compelling, if preliminary, evidence of the widespread cross-cultural acceptance of the moral and legal right of self-defense, suggesting a basis for the worldwidecomprehensibilityandappealof human-rights language.

Human Rights as an Element of Mutual Recognition and Equality of Opportunity

The fact of multiculturalism or pluralism plays a significant role in forming the law as well as in the functioning of various state institutions, hence human rights take a lead in the protection of the rights of minorities or discriminated groups. Considering these problems in my article, I formulate the thesis that arguments for the justification of human rights should be sought in the principle of mutual recognition, which is an expression of a cross-cultural consensus, an individualistic conception of a person, and equal opportunities as universal premises for these rights. Such assumptions expressed in human rights – whether justified or even framed in an innovative way – are the main force shaping a cosmopolitan civil society.

RIGHTS AS RATIONALIZATIONS? PSYCHOLOGICAL DEBUNKING OF BELIEFS ABOUT HUMAN RIGHTS

ABSTRACTThis paper explores a novel type of argument in legal theory—a psychological debunking argument—by the example of the justification of human rights and based on a psychological dual-process model of decision-making. Debunking arguments undermine confidence in a belief because of shortcomings of the empirical conditions under which it was formed. They thereby open a route from the descriptive to the evaluative, from Is to Ought, without illicitly crossing metaethical waters since they involve normative premises. As they are epistemic, they cannot replace substantive arguments on the merits. However, they may be useful when substantive arguments are stalled or the necessity to make a judgment precludes further discussions.The controversial justification of human rights is a good test case for debunking arguments. The challenge is to find features in the formation of beliefs about human rights that undermine their epistemic justification. Some psychologists claim that relevant beliefs arise from the rationalization of intuitions. This process is ill-suited to generate correct beliefs; so formed beliefs may be debunked. This also shows how legal reasoning might be improved.

Where Did ‘Human Dignity’ Come from? Drafting the Preamble to the Irish Constitution

Abstract This article addresses the correctness of Samuel Moyn’s contention that the inclusion of ‘dignity’ in the Irish Constitution of 1937 reflects a particularistic, sectarian and conservative Catholic viewpoint, rather than (as some other scholars do) seeing the inclusion of ‘dignity’ as the first tentative step towards the instantiation of a universalistic, liberal human rights ethic into the Irish Constitution. For Moyn, ‘dignity’s’ sectarian, political origins in Ireland add weight to his sceptical approach to human rights more generally, given the extent to which human dignity is now seen as underpinning the justification of human rights. In arguing against Moyn’s conclusions, the article provides a detailed re-examination, based on archival research, of the drafting of the Preamble to the Irish Constitution in which the term ‘dignity’ is located, situating it in the intellectual changes in political Catholicism and Irish nationalism at that time. In particular, the article examines for the first time to what extent insights can be gleaned from the contemporaneous translation of ‘dignity’ into the Irish language version of the Constitution, and the significance of the choice of ‘uaisleacht’ in the Irish text. Drawing from this, the article identifies the various different influences that appear to have contributed to the use and meaning of dignity in the Preamble, before returning to consider how far Moyn’s assessments are correct in light of the re-examination of the drafting history.

The Problem of Recognition of Human Rights: Does Explicative-Existential Justification Really Work?

This paper analyses Robert Alexy’s explicative-existential justification of human rights. The author identifies several problems that are associated with it. An analysis of Alexy’s explicative argument suggests that it cannot cope with the transition from facts to norms. Notably, this argument does not explain why its requirements cannot be overruled by some other moral reason (for example, the utility principle). The answer that Alexy offers in his existential argument is not considered sufficient by the author of this paper. Although this argument complements the necessary normative premises, the existential decision preferred by Alexy is not the only one necessary. It can be admitted that for many people such a decision is attractive. However, even if we accept that explicative-existential justification is credible in some context, it is correct to apply it only to the rights of persons and not to the rights of human beings. In the final part, the author shows that the claim that this theory can justify even the rights of human beings who are not persons is indefensible.

Explicative-Existencial Justificacion of Human Rights Analysis of Robert Alexy's Argument in Context of Is-Ought Problem

This paper analyzes Robert Alexy's explicative-existential justification of human rights. According to the author, there are two problems connected with this concept. It cannot establish human rights universally and explain why we should accept them. In the paper, these questions are addressed in the context of the Is-Ought problem. Alexy's approach is compared with other theories that strive for human rights justification (basic needs approach, capability approach, and the foundationalism of Alan Gewirth). The author finds that in this respect all other theories have similar disadvantages. The inability to adequately elucidate the transition from Is to Ought is a general problem in moral philosophy, and therefore cannot diminish the position of Alexy's justification in this context. Although his approach does not really meet certain absolute requirements for good justification, if we evaluate it in relation to other available alternatives, we have to acknowledge its significant place in the philosophy of human rights. Even with Alexy's theory, however, the problem persists that it establishes rights of human persons rather than rights of human beings. It is therefore not able to fulfill some of its universalist aspirations.

On the Philosophical Foundations of Human Rights

This article presents the basic problems surrounding the question of philosophical justification of human rights. In the first part of this paper, the Author points out the deficit of philosophical reflection both in modern discourse on human rights, and within the legal sphere. This deficit leads to a series of negative consequences, such as 1) an excessive number of rights considered to be inalienable and inherent, which results in a depreciation of their importance (the problem of the „inflation” of rights); 2) the ideological entanglement of human rights; and 3) aseverance of the relationship between rights and duties. At the same time, there is much controversy currently surrounding the cathegory of human person and his/her dignity. This issue – which carries with it serious practical implications – demonstrates the necessity of in-depth philosophical reflection on the ontological and antrophological foundations of human rights, understood as an ethical minimum that can be accepted by people of different cultures and worldviews.

THE CHALLENGE OF ETHICAL-CULTURAL PLURALISM TO THE UNIVERSALITY OF HUMAN RIGHTS

One of the main criticisms directed against the legitimacy of internationally recognized human rights is that they are ethnocentric or parochial. The examination of this objection leads to the conclusion that it is not relativism but cultural-ethical pluralism the main challenge to the universal validity of human rights. Ethical pluralism queries that the justification of human rights that has prevailed since the approval of the UDHR has arbitrarily given, under a deceptive appearance of universality, a weight far superior to individualistic values than to collectivistic. After examining some of the main attempts to overcome this challenge (the constructive theory of human rights and justificatory minimalism), the one based on the defense of a kind of ethical individualism compatible with a moderate ethical objectivism is defended as a preferable alternative.

Human Rights and Public Health Ethics

This paper relates human rights to public health ethics and policies by discussing the nature and moral justification of human rights generally, and the right to health in particular. Which features of humanity ground human rights? To answer this question, as an alternative to agency and capabilities approaches, the paper offers the “fundamental conditions approach,” according to which human rights protect the fundamental conditions for pursuing a good life. The fundamental conditions approach identifies “basic health”—the adequate functioning of the various parts of our organism needed for the development and exercise of the fundamental capacities—as the object of a human right. A human right to basic health entails human rights to the essential resources for promoting and maintaining basic health, including adequate nutrition, basic health care, and basic education. Duty bearers include every able person in appropriate circumstances, as well as governments and government agencies, private philanthropic foundations, and transnational corporations.

La Ley de Seguridad Interior en México: entre la razón de Estado y la justificación de los derechos humanos/ The Law of Internal Security in Mexico: between the reason of State and the justification of human rights

Presentamos un análisis cualitativo exploratorio-descriptivo desde la Ciencia Política acerca de la argumentación sostenida en las iniciativas de la Ley de Seguridad Interior (LSI) presentadas por el Partido Revolucionario Institucional (PRI), el Partido Acción Nacional (PAN) y el Partido de la Revolución Democrática (PRD). Dos conceptos operativos guían el análisis: razón de Estado y derechos humanos, presentes tanto en las justificaciones implícitas de quienes impulsan la Ley como en las de sus detractores, quienes la califican de violatoria de derechos humanos. En este último punto, nos concentramos en revisar dos acciones de inconstitucionalidad presentadas por la Comisión Nacional de los Derechos Humanos (CNDH) y por un grupo de legisladores de oposición que no votaron a favor de la LSI en la Sexagésima Tercera Legislatura. Nos interesa mostrar la colisión de argumentos entre la visión de Estado, que quiere legitimar jurídicamente la presencia del Ejército en las calles y la otra visión, que asume una justificación garantista de los derechos humanos.
 Abstract
 We present an exploratory qualitative analysis from the standpoint of Political Science about the argumentation sustained in the initiatives of the Internal Security Law (LSI) presented by the Institutional Revolutionary Party, the National Action Party and the Party of the Democratic Revolution. Two operative concepts guide the analysis: reason of State and human rights, both present in the implicit justifications of those who promote the law, and in those of its detractors, who qualify it as a violation of human rights. In this last point, we concentrate on reviewing two unconstitutionality actions presented by the National Commission of Human Rights and by a group of opposition legislators who did not vote in favor of the LSI in the Sixty-Third Legislature. We aim to show the collision of arguments between the vision of the State, which wants to legally legitimize the presence of the Army in the streets, and the other vision, which assumes a guaranteeing justification of human rights.

Discourses of Exclusion: The Societal Securitization of Burma’s Rohingya (2012–2018)

The contemporary persecution of Burma’s Rohingya has rapidly evolved from isolated episodes of communal violence into a global humanitarian crisis. The article analyses the evolution of the recent violence in Rakhine State from 2012 to the present. Specifically, I argue that Buddhist nationalist monks, including members of the ‘969’ Movement and Ma Ba Tha, in concert with the Burmese government, have acted as authoritative voices in society, depicting the Rohingya ethno-religious group as an existential threat to the country’s majority Buddhist population. As such, hate-filled rhetoric has provided a politically unstable Burmese regime with an ideological justification for human rights abuses committed in Rakhine State. This phenomenon is analysed through Barry Buzan and Ole Waever’s securitization thesis as a means of better understanding the discursive relationship among Buddhist nationalist monks, the Burmese government and the Burmese Buddhists. Ontologically, this article focuses on anti-Rohingya discourse and major episodes of violence in western Burma’s Rakhine State from 2012 to 2018. As a discursive process, securitization has not merely amplified Islamophobia within Burma, but significantly endangers future generations of Rohingya civilians.